Furr v. James

427 S.W.3d 94, 2013 Ark. App. 181, 2013 WL 1007309, 2013 Ark. App. LEXIS 190
CourtCourt of Appeals of Arkansas
DecidedMarch 13, 2013
DocketNo. CA 12-708
StatusPublished
Cited by10 cases

This text of 427 S.W.3d 94 (Furr v. James) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Furr v. James, 427 S.W.3d 94, 2013 Ark. App. 181, 2013 WL 1007309, 2013 Ark. App. LEXIS 190 (Ark. Ct. App. 2013).

Opinion

DAVID M. GLOVER, Judge.

| Jacqueline Furr (formerly James) and Anthony James were divorced by decree entered April 17, 2009. They are the parents of J.J. and K.R., two minor children. Cathy James is the paternal grandmother of the two children. At the time of the divorce, custody of the two children was awarded to their father, Anthony, Cathy’s son. Un January 11, 2012, Cathy petitioned to be appointed as temporary and permanent guardian of the children, alleging that neither parent was providing an appropriate home for the children. Temporary guardianship was granted to her the same day. On January 17, 2012, Jacqueline responded to the petition, she also counter-petitioned for guardianship. Then, on February 8, 2012, she filed a petition to modify custody. Both matters were consolidated for trial and, following an April 5, 2012 hearing, the trial court granted guardianship of the children to Cathy and ^denied Jacqueline’s petitions to modify custody and award guardianship to her. As her sole point of appeal, Jacqueline contends that the “trial court clearly erred in appointing a guardian for the two minor children when there was a fit and natural mother seeking to obtain custody of her children [and] the court erred in failing to follow the natural-parent presumption.” We affirm.

Standard of Review

Our appellate courts review guardianship proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Fletcher v. Scorza, 2010 Ark. 64, 359 S.W.3d 413. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. When reviewing the proceedings, we give due regard to the opportunity and superior position of the trial court to determine the credibility of the witnesses. Id. Moreover, in cases involving children, we afford even more deference to the trial court’s findings because our appellate courts have made clear that “ ‘there is no other case in which the superior position, ability, and opportunity of the chancellor to observe the parties carries a greater weight than one involving the custody of minor children.’ ” Ford v. Ford, 347 Ark. 485, 491, 65 S.W.3d 432, 436 (2002) (quoting Taylor v. Taylor, 345 Ark. 300, 304, 47 S.W.3d 222, 224 (2001)). We give special deference to the superior position of the trial court to evaluate the witnesses, their testimony, and the child’s best interest. Brown v. Brown, 2012 Ark. 89, 387 S.W.3d 159.

| ^Discussion

We approach our analysis of this case recognizing that it is complicated somewhat by the alignment of pleadings, these proceedings were initiated by the paternal grandmother’s petition for guardianship (asserting that neither her son nor Jacqueline should have custody of the children, and requesting that she be awarded guardianship over them); her petition was followed by Jacqueline’s counterpetition and by Jacqueline’s subsequent motion for change of custody, all of these petitions were consolidated for hearing. Because custody of the children was still with Anthony at the beginning of these proceedings, we start there for ease of discussion. A change in circumstances must be shown before a trial court may modify an order regarding child custody. Jones v. Jones, 2009 Ark. App. 571, 2009 WL 2877609. Here, it is undisputed that a change of circumstances had occurred between the award of custody to Anthony in 2009 and the April 5, 2012 consolidated hearing. No one challenges the trial court’s finding that Anthony had become an unfit parent in the interim and could no longer maintain custody of the children.1

Once that determination was made, however, the trial court was not obligated to automatically switch custody of the children to Jacqueline because it was still faced with Cathy’s petition for guardianship, Jacqueline’s counterpetition for guardianship, and Jacqueline’s motion for change of custody. When there has been a change of circumstances, the primary consideration for the trial court in awarding custody, or guardianship, of children remains the welfare and best interest of the children involved. See, e.g., Fletcher, supra; Freeman v. Rushton, 360 Ark. 445, 202 S.W.3d 485 (2005); Hudson v. Hudson, 2012 Ark. App. 308, 419 S.W.3d 34. Our appellate courts have regularly and often said that the child’s best interest is the paramount consideration in any situation in which the trial court is deciding who should exercise care, custody, and control over the minor child. Further, while we always give due regard to the opportunity and superior position of the trial court to determine the credibility of the witnesses, Fletcher, supra, we have also repeatedly held that, in cases involving children, we afford even more deference to the trial court’s evaluation of the witnesses, their testimony, and the best interest of the children. Ford, supra.

The testimony presented to the trial court in 2012 concerning Jacqueline’s care of her two minor children came primarily from Cathy about her observations of the children upon their return to her from visitation periods spent with their mother. Her observations included the following, they smelled horrible, their hair was greasy and they had to be bathed immediately, when bathed, she noticed that they had numerous marks and bites, they were always scratching their heads and talking about flea bites, they had belt marks across their bottoms and burns on their faces, they acted extremely fearful and more aggressive, and they had issues sleeping through the night.

Jacqueline’s primary argument is that the trial court did not find her to be unfit, and that without that finding, as a natural parent, she should have been given preference over Cathy in the guardianship proceedings. Our problem with her argument is that it does not accurately reflect our guardianship laws.

|fiIn Fletcher, supra, as here, the mother challenged the guardianship award premised on the idea that a natural parent must be proved unfit before a guardianship may be entered in favor of someone other than the natural parent. Our supreme court, in Fletcher, supra, acknowledged that statements to that effect had been made in earlier cases, but then proceeded to reject that position, explaining that Arkansas Lode Annotated section 28-65-204(a) (the parental-preference guardianship statute) makes no mention of whether the natural parent is “fit” or “unfit,” and that “[t]o the extent that any of our prior cases suggest a standard of fitness or unfitness in guardianship proceedings involving the statutory natural-parent preference, we overrule them.” Id. It is clear to us that Jacqueline’s fitness argument must fail in the face of Fletcher.

In Fletcher, our supreme court emphasized the importance of the children’s best interest in determining guardianship.

Where the incapacitated person is a minor, the key factor in determining guardianship is the best interest of the child. Preferential status in a guardianship proceeding may be given to the natural parents of a child pursuant to Ark.Code Ann. § 28-65-204(a) (Repl. 2004).

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Bluebook (online)
427 S.W.3d 94, 2013 Ark. App. 181, 2013 WL 1007309, 2013 Ark. App. LEXIS 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/furr-v-james-arkctapp-2013.